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TMI Blog2018 (1) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... ot entitled to avail draw back. 2. The brief facts of the case are that the appellants are a unit in DTA, and are engaged in the manufacture and export of stainless steel pet bowls. They availed drawback on these exports. The appellants set up a separate EOU unit in the same premises and obtained LOP from Development Commissioner on 31.03.2006, which was valid up to 31.03.2009. As per the terms of the LOP, the appellants executed the LUT but could not get the premises customs bonded within the validity period of the said LOP despite getting LOP extended upto 31.03.2010. During the year 2012, the Customs at ICD, T KD sought a clarification from the jurisdictional Central Excise officer as to whether appellants were a functional EOU or not, in which case they would not be eligible for drawback. The Central Excise authorities clarified that the appellant had never functioned as an EOU as they could not get the premises customs bonded within the validity period of LOP. Based on this clarification, Customs ICD, T KD released all the pending drawback claims of the appellants. Subsequently, in the year 2014, the DRI initiated fresh investigations into the matter and came to the conclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t such order- (a) a decision or order passed by the 301 [Commissioner of Customs] as an adjudicating authority; (b) an order passed by the [Commissioner (Appeals)] under section 128A; (c) an order passed by the Board or the Appellate [Principal Commissioner of Customs or Commissioner of Customs] under section 128, as it stood immediately before the appointed day; (d) an order passed by the Board or the [Principal Commissioner of Customs], either before or after the appointed day, under section 130, as it stood immediately before that day: [Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to, - (a) any goods imported or exported as baggage; (b) any goods loaded in a conveyance for importation into India, but which are not unloaded at their place of destination in India, or so much of the quantity of such goods as has not been unloaded at any such destination if goods unloaded at such destination are short of the quantity required to be unloaded at that destination; (c) payment of drawba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice Tax v. Ernst and Young Pvt. Ltd. and other connected cases decided on 25 th February, 2014 [2014 (34) S.T.R. 3 (Del.)]. In this decision, it has been observed that the issues and contentions decided in the order-in-original would determine whether an appeal would lie before the High Court under Section 35G of the Central Excise Act, 1944 or before the Supreme Court under Section 35L of the Supreme Court or the High Court under Section 35L or 35G of the aforesaid Act. This was apparent from the language and words of the two provisions and a contrary interpretation would lead to unacceptable results with one party filing appeal under Section 35G and the other party under Section 35L of the said Act. Further, the respondent may be denied right to file cross objections. It is noticeable that in the first round also, against the order of the Tribunal, an appeal was preferred before the Supreme Court by the assessee. 2. In these circumstances, the appeals are returned as they are not maintainable before the High Court. It is open to the appellant-Revenue to file an appeal under Section 35L of the Central Excise Act, 1944, if so advised, and in accordance with the law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng (LUT) was executed V by the unit to abide by the terms and conditions of the LOP. The appellant have contended that the EOU was never set up and the warehousing licence granted, was of no avail, as the LOP had already expired. I find that it would be appropriate to look into the scheme of Export Oriented Units. Under the EOU scheme, the units are allowed to procure locally without payment of duty all types of materials, components, packing material, consumables, spares and various other specified categories of equipments including material handling equipments, required for export production or in connection therewith. The exporters are treated as a special class. I find that it is on record that the appellant had set up a unit as 100% EOU and letter of permission to this effect was issued by NSEZ authorities. I find that the fact, which is undisputed, is that at the time of exportation, tie appellant unit did not disclose their identity of being an EOU to Customs and claimed duty drawback on the exported goods. I find that having been accepted the terms and conditions of LOP through executing Legal Undertaking (LUT), it was incumbent upon the appellant unit to declare the true s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the recorded statement of Appellant No.2 in which he has admitted that they declared their unit as functional EOU to the Income Tax Authorities and that their company had never declared the status declared to Income Tax with Customs and Central Excise authorities. I am in. agreement with the findings of the adjudicating authority that Appellant No.2 was the key person for following modus operandi of availing simultaneous benefits under different export promotion schemes. I find that the penalty imposed in the impugned order is just and proper and no interference is warranted. The ratio of the cases referred to be the appellant is confined of the facts and circumstances of the particular case and I find that all the sad judgments were case specific and need to be applied provided the conditions/circumstances remains same. Further, there was nothing on record to suggest that the circumstances/conditions which prevailed in these judgments were existing in the present case. The appeal filed by the appellants does not merit consideration. We find that in the impugned order, the Ida Commissioner (Appeals) has examined the issue whether the appellant unit is an 100% EOU or not and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e department vide their letter C.No.CE-20/misc/Excise/R-IlI/PNP/10/578 dated 17.01.2011 (copy enclosed). (iv) The party has submitted that after expiry of their LOP on 31.03.2010 they could not have acted as 100% EOU unit and they are eligible for drawback benefit all along exports made after 31.03.2010. In view of above circumstances, it appears that the said unit has never operated as an EOU. 9. We further taken note of the fact that, as per letter dated 05.10.2006, issued by the Development Commissioner, in which it has been clearly stated that the appellant unit will be treated as working under 100% EOU scheme from the date from which it starts working in customs bonded and as per the clarification given by the office of the Commissioner of Customs, ICD, Tughlakabad dated 24.07.2012 that the appellant has never functioned as an EOU and released the pending drawback claims. We find that without customs bonding, the unit cannot be considered as an EOU. Further, as per the Customs Manual of supplementary instructions, Para 3.4, which is reproduced below, the EOU must be custom bonded:- 3.4 On approval for setting up an EOU by Unit Approval Committee, a let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so. The Revenue has failed to establish that appellants were functioning as 100% EOU under the provisions of Customs Act or Foreign Trade Policy. In that circumstance, we hold that the appellant's unit is not 100% EOU and it is only a DTA Unit. 11. In view of the above terms, the impugned order is set-aside and the appeals are allowed with consequential relief to the appellant. (Order pronounced in the court on 12.12.2017) B. Ravichandran Member (Technical) Ashok Jindal Member (Judicial) Difference of Opinion I have perused the Final Order proposed by the Id Member (Judicial), With due regard, I am not able to accept the Final Order recorded by the Id Member (Judicial) with reference to admissibility of the present appeal before the Tribunal. The reasons for my disagreement are recorded as below: a) The present proceedings emanated by issue of SCN dated 04.09.2014 by the Joint Commissioner of Customs (ICD), Tughlakabad. The SCN proposed a denial of drawback amounting to ₹ 6.91 crores and sought to recover the same under the provisions of Rule 16 of Customs and Central Excise Duties Drawback Rules, 1995. b) The notice was decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which may be linked with some other issues, the Tribunal has no jurisdiction to take up the appeal against the order of Commissioner (Appeals). It was held that when an appeal is involved, the question of fact/law of both drawback as well as classification, the appeal cannot be maintained before the Tribunal. It is to be further noted that in M/s ESSAR Overseas Company, 2017 (348) ELT 171 (Tri-Mumbai), the Tribunal held that payment of drawback also Includes the recovery of drawback. Any proceedings for recovery of drawback cannot be appealed before the Tribunal when the order is passed by Commissioner (Appeals). 4. In view of the above analysis, I find that the present appeal cannot be entertained by the Tribunal in view of the statutory bar mentioned above. When the appeal is not maintainable due to lack of jurisdiction, the question of examining the merits of the appeal does not arise. Point of difference for reference In view of findings recorded by Member (Tech) and Member (Judicial), as above, the following difference of opinion needs to be resolved: Whether the appeal is maintainable before the Tribunal is view of the bar of Section 129A of the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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